Case Update (6 Oct 2023): In the Interest of AHS & AYS; Court of Appeals affirms order to re-return 2 children in Israel to Texas
This case is a long-standing and complicated case. It started when the Mother flew to Israel to salvage her relationship with the Father, and, before she was able to board a return flight to Texas, gave birth to twins. There were ultimately custody orders entered in Israel requiring the children to remain in Israel, but the Mother, nonetheless, relocated the children to Texas. A Texas state court ordered the children to return to Israel pursuant to the Hague Abduction Convention. The children returned to Israel with their Father, at which time the Mother appealed. Her appeal was successful, hinging on the issue of habitual residence. The Court of Appeals of Texas concluded that the United States, and not Israel, was the children’s habitual residence, and reversed the return order. The children were, however, already in Israel at the time of the Mother’s successful appeal. The Mother filed a Motion for Enforcement, Clarification and Re-Return. After a Zoom hearing, the Texas court ordered the Father to surrender the twins in Israel to the Mother so she could return to the United States. The Father appealed, and, on October 6, 2023, the Court of Appeals of Texas issued its next opinion in this case. The Mother also filed a Hague Abduction return petition in Israel, and ultimately, after several appeals, Israeli courts concluded that the Father was not wrongfully retaining the children in Israel and need not return them to the United States.
In this appeal, the Father argued that the court did not have the authority to order the children re-returned to Texas because the Hague Convention and ICARA do not address or provide a procedural mechanism for a re-return and a re-return order is an impermissible de facto custody determination. But, this, according to the Court of Appeals, ignores the authority of a court to enforce its own orders (and of a trial court to enforce the appellate court’s order). It is further not a custody determination. The appellate decision was a decision on the child’s habitual residence. Once the children are returned, a custody case can proceed.
The Father sought recognition of the Israeli Hague orders as a matter of comity. Comity is, however, a mere matter of courtesy and not a mandate, so the Texas court declined to extend comity to the Israeli Hague orders (which, apparently, never included an express finding of the children’s habitual residence). The court noted that the Father does have 2021 custody orders from Israel, that the matter pending before the Texas court is, however, a case brought under ICARA and the Abduction Convention and not a matter to enforce Israeli custody orders, and the Father could have, but failed to, ever seek the registration and enforcement of those foreign custody orders under the UCCJEA in Texas.
